[1]
This is a consolidated application under section
44 of the Access to Information Act, RSC, 1985, c A-1 (Act).
It pertains to the disclosure by Transport Canada (Department) of certain
information in relation to four separate requests for access to information
under the Act. The applicant, Porter Airlines Inc (Porter), requests an
order under section 51 of the Act prohibiting this disclosure.
[2]
Various provisions in the Act define the
character of documents that are exempt from disclosure. Consequently, this
application turns on a question of characterization, namely, whether or not the
documents at issue fall within the ambit of the exemptions against disclosure
under the Act. I conclude that while information related to Porter’s unique
safety protocols and personal information are exempt from disclosure, the
remainder, including the Department’s regulatory conclusions with regard to
that information, is not.
[3]
The basic facts in this case are undisputed.
[4]
Porter holds an Air Operator (AO) certificate
and an Approved Maintenance Organization (AMO) certificate under the Canadian
Aviation Regulations, SOR/96-433. As a consequence, Porter is responsible
for developing a Safety Management System (SMS), a documented process for risk
management.
[5]
As part of the Department’s regulatory oversight
of airlines it periodically conducts program validation activities to verify
the regulatory compliance of an airline’s safety protocols. When the
Department concludes that an airline’s safety protocols do not satisfy
regulatory requirements, it requires the airline to create a Corrective Action
Plan (CAP) to resolve the issue. The Department then approves the CAP and
monitors its implementation. In certain instances, the Department may issue a
Notice of Suspension and make the submission of a CAP a condition of rescission
of the Notice of Suspension.
[6]
The Department received four access to
information requests in relation to [omitted]. The information gathered by the
Department that it considered relevant to those requests make up the disputed
information in this case. With respect to all four requests, the Department
provided notice to Porter, Porter objected to the release of the disputed
information, and the Department ultimately decided to release all of the
information, except portions that the Department agreed were exempt from
disclosure in relation to either privacy or confidentiality concerns raised by
Porter.
[7]
In this Court, Porter applies for judicial
review of all four of the Department’s decisions to release the disputed
information.
[8]
There are four access to information decisions
under review. Three of those decisions have been consolidated. Further, a
fourth decision, while not consolidated, was heard together with the
consolidated proceeding. All four fit within the same factual and legal
matrix.
[9]
There are two timelines relevant to these
proceedings: the timeline of [omitted] and the timeline of the Department’s
decisions on access to information requests relating to that [omitted].
[10]
The history in respect of Porter’s regulatory
proceedings is as follows:
[omitted]
[11]
In sum, [omitted]. Porter was merely provided [omitted].
[12]
The Department’s decisions regarding the four
access requests (with their corresponding docket number) proceeded as follows:
[omitted]
[13]
In sum, the three later decisions of the
Department (T-1451-12, T-1165-12, and T-1166-12), which all relate to
information about [omitted], were consolidated. The first decision of the
Department (T-528-12), which related to [omitted], while not consolidated, was
heard together with the consolidated proceeding.
[14]
These reasons address the judicial reviews of
all four decisions of the Department. All four decisions are factually related:
the subject matter of the first decision [omitted] was the basis for the
subject matter of the later three consolidated decisions [omitted]. Further,
the same legal principles govern the review of all four decisions. A single
judgment is expeditious without any sacrifice to the merits of the legal
issues.
[15]
The appropriate standard of review in this case
is correctness. As a majority of the Supreme Court of Canada found in Merck
Frosst Canada Ltd v Canada (Health), 2012 SCC 3 at para 53:
[W]hen a third party […] requests a “review” under s. 44
of the Act by the Federal Court of a decision by a head of a government
institution to disclose all or part of a record, the Federal Court judge is to
determine whether the institutional head has correctly applied the exemptions
to the records in issue.
[16]
As a consequence, at issue is whether the
Department correctly characterized the documents in question when it determined
that they were not subject to the exemptions against disclosure under the Act.
[17]
Subject to section 20 of the Act, “the head of a government institution shall refuse to
disclose any record requested under this Act that contains” certain types of information (section 20(1)). In this
case, the principle exemptions at issue are found in sections 20(1)(b),
20(1)(c), and 20(1)(d) of the Act. All of these
exemptions are mandatory (section 20(1) of the Act). Consequently, if
the information in question fits within any of the exemptions, it must not be
disclosed.
[18]
There was also a minor dispute (addressed
briefly in written argument) about exemptions under section 19 of the Act
that I will also address.
[19]
The disputed information may be divided into two
types of information. This is a critical observation which has implications throughout
the analysis of the exemptions under section 20 of the Act.
[20]
Porter and the Department both predicated their
positions on a single conglomeration of information: the “disputed
information.” Referring to the reports in
question in this singular way is misleading when assessing the application of
the exemptions under the Act.
[21]
Rather, the disputed information may be divided
primarily into two different types of information: (1) Porter’s SMS information
(which Porter reported to the Department); and (2) the Department’s regulatory
conclusions regarding [omitted].
[22]
This dichotomy is not novel. Indeed, the
jurisprudence with respect to the section 20 exemptions has consistently
referred to this dichotomy. In Air Atonabee Ltd v Minister of Transport,
27 CPR (3d) 180, 1989 CarswellNat 585 (FCTD) [Air Atonabee cited to WL
Can] the dichotomy was drawn between “communications
which originate with the applicant” and “comments or observations of public inspectors based on
their review of” those communications (at paras
49-51). Further, in Air Transat AT Inc v Canada (Transport Canada),
[2001] CarswellNat 1965 (FCTD) at para 14 [Air Transat cited to WL Can],
the court noted that ““[a] distinction should be
made between the analysis done by the government organization from information
obtained during the inspection and the information supplied directly to the
inspectors by the third party.” Finally, in Merck
Frosst, the Supreme Court of Canada discussed how the records in issue
contained both “information supplied by Merck” in addition to “the
analysis and observations of the reviewers, their conclusions and
recommendations” (at para 152).
[23]
Further, the jurisprudence has consistently held
that regulatory conclusions are generally not subject to the exemptions,
whereas information supplied to the Department for its regulatory assessment
generally is. For example, in the two main cases involving the regulatory
assessment of airlines cited in argument, the information supplied by the
airlines was subject to exemptions from disclosure, whereas regulatory
conclusions were not (see Air Atonabee, at paras 72-74; Air Transat,
at para 20).
[24]
In this case, rather than grappling with this
dichotomy, counsels’ submissions were two ships passing in the night, each
arguing that the disputed information in its entirety was either Porter’s SMS
information (in the case of Porter), or the Department’s regulatory conclusions
(in the case of the Department). Neither is correct. On the contrary, the
disputed information contains both SMS information and regulatory conclusions.
[25]
Admittedly, the two may intersect. For example,
in its memorandum of argument the Department described how the disputed
information “contain[s] summary statements
indicating whether [Porter] [omitted], and [the Department’s] reasons for
supporting these findings.” It is precisely those
“reasons” that may
refer to unique aspects of Porter’s SMS system. Indeed, the Program Validation
Report issued to Porter consisted of [omitted] including “specific
references to the samples of company records.”
That being said, with effective and creative redaction, there is no need for
Porter’s confidential SMS information to be disclosed with the Department’s
conclusions.
[26]
For its part, Porter attempted to argue that the
Department’s regulatory conclusions could not be severed from its confidential
SMS information. In particular, Porter argued that this case was analogous to Air
Transat, in which Justice Rouleau found that the inspectors’ conclusion “could not be dissociated”
from the information supplied by the airline because they were “so closely related” (at
para 16). This is a misreading of that decision. Justice Rouleau ultimately
concluded that findings by the inspector could be disclosed while documents
submitted by the airline could not (at para 20). In other words, Justice
Rouleau was able to “dissociate” regulatory conclusions from documents submitted by the
airline with respect to disclosure under the Act. Justice Rouleau’s
comments about the regulatory conclusions not being capable of dissociation
from the information supplied by the airline were directed to the content of a
comprehensive regulatory report and not to the limits of redaction. Put
differently, Justice Rouleau was commenting on how, when drafting inspection
reports, the Department must include both its regulatory conclusions and the
SMS information which substantiates those conclusions, not that, when releasing
information under the Act, it is impossible to redact the portions
including SMS information.
[27]
Porter’s SMS information could only be
inextricably linked with the Department’s regulatory conclusions in so far as [omitted].
To characterize a basic regulatory conclusion as confidential technical
information within Porter’s “unique SMS system” would amount to a blanket protection of all regulatory
conclusions. The mere fact that [omitted], but rather, basic binary
conclusions about whether that SMS information (which is itself undisclosed) [omitted].
[28]
With the crucial dichotomy between regulatory
conclusions and SMS information established, I turn to the exemptions.
[29]
Section 20(1)(b) of the Act
exempts the following information from disclosure:
|
financial,
commercial, scientific or technical information that is confidential
information and is treated consistently in a confidential manner by the third
party
|
des
renseignements financiers, commerciaux, scientifiques ou techniques fournis à
une institution fédérale par un tiers, qui sont de nature confidentielle et
qui sont traités comme tels de façon constante par ce tiers
|
[30]
Section 20(1)(b) has four discrete
requirements: (1) the information must be either financial, commercial,
scientific, or technical; (2) the information must be confidential; (3) the
information must be supplied to a government institution by a third party; and
(4) the information must be treated consistently in a confidential manner by
that third party (Air Atonabee, at para 34).
[31]
The first and fourth requirements are not in
dispute between the parties. I will therefore be brief in their respect.
[32]
Regarding the first requirement, the disputed
information is both commercial and technical (as those terms are commonly
understood: Air Atonabee, at para 36; Merck Frosst, at para 139).
[33]
The Federal Court’s finding in Air Transat,
at para 15 (var’d on appeal but not on this point), that plant inspection
reports are “unquestionably”
technical information under section 20(1)(b) supports the conclusion
that the disputed information in this case satisfies the first Air Atonabee requirement.
The reports in Air Transat contained similar information to the SMS
reports in this case. Consequently, there is jurisprudential support for the
SMS information constituting, at a minimum, technical information.
[34]
Regarding the fourth requirement, the disputed
information was consistently treated confidentially by Porter. The affidavits
of Mr. Deluce (President and CEO of Porter) provided ample evidence in this
regard. The disputed information is held in strict confidence, cannot be
disclosed by employees unless specifically required, and is never made public.
[35]
Having addressed the first and fourth requirement,
I turn to a more detailed analysis of the two disputed criteria: whether the
information was supplied to the government by a third party and whether the
information is confidential.
[36]
This criterion demonstrates the importance of
distinguishing Porter’s SMS information from the Department’s regulatory
conclusions when analyzing the disputed information under the exemptions. The
former is information supplied to the Department by a third party (Porter), and
therefore meets this criterion of confidentiality under section 20(1)(b).
The latter does not.
[37]
The jurisprudence demonstrates, properly in my
view, that regulatory conclusions based on the review of third party documents
do not constitute information supplied to the government by a third party. As
the Court found in Air Atonabee, and as the Supreme Court of Canada
affirmed in Merck Frosst, at para 156:
where the record consists of the comments or
observations of public inspectors based on their review of the records
maintained by the third party at least in part for inspection purposes […] the
information is not to be considered as provided by the third party.
[38]
For its part, Porter argued that Merck Frosst
“acknowledged that information generated by an
institution, such as the Department, may qualify for protection from disclosure
if it summarized information that has come from a third party, such as Porter.” I agree. However, the basic regulatory conclusions
of the Department do not summarize Porter’s confidential SMS information, and
therefore are not within the ambit of this reservation.
[39]
In Merck Frosst, the Supreme Court of
Canada summarized the approach to whether information was supplied by a third
party as follows:
whether confidential information has been “supplied to a
government institution by a third party” is a question of fact. The
content rather than the form of the information must be considered: the
mere fact that the information appears in a government document does not, on
its own, resolve the issue. The exemption must be applied to information
that reveals the confidential information supplied by the third party, as well
as to that information itself. (at para 158; emphasis added).
[40]
In essence, the Supreme Court of Canada was
making clear that confidential information does not lose its confidentiality
merely by a change in letterhead. The intention of Parliament to protect
confidential information under the Act would be gutted if the Department
could receive confidential information, paraphrase it, and then disclose that
same information to the public. Thus, Porter’s SMS information, no matter its
form within the disputed information, may not be disclosed. However, the
Department’s regulatory conclusions related to that SMS information do not “summarize” Porter’s SMS
information. Rather, they are based on the Department’s analysis of that SMS
information and whether or not [omitted].
[41]
On this point, Porter also argued that the
Department’s regulatory conclusions could not be dissociated from Porter’s SMS
information, making all of the disputed information exempt from disclosure. As
I already explained above, this argument fails. In the main, regulatory
conclusions need not contain any SMS information. Porter’s reliance, for this proposition,
on a single out-of-context statement from Air Transat (at para 16) is a
thin reading of that case and disregards how, four paragraphs later, Justice
Rouleau ultimately ruled in favour of disclosing the Department’s findings from
the documents supplied by the airline (at para 20).
[42]
Before leaving this point, I note again, that
there may be circumstances where the regulatory conclusion necessary discloses
information that would otherwise be confidential. Put otherwise, there are
circumstances where creative redaction will reach its limits. In this case,
the Court’s attention was not drawn to any such scenario in the disputed
information.
[43]
In sum, the Department’s regulatory conclusions
were not “supplied to a government institution by
a third party” and therefore cannot be exempt
under section 20(1)(b). In contrast, Porter’s SMS information was “supplied to a government institution by a third party,” and does meet this criterion from Air Atonabee.
There is no need to consider the final Air Atonabee factor
(confidentiality) regarding the Department’s regulatory conclusions because all
of the criteria must be met simultaneously. Regardless, I will analyze both
the Department’s regulatory conclusions and Porter’s SMS information with
respect to each of the Air Atonabee factors for the sake of a complete
record.
[44]
There are three criteria that must be met to
qualify information as confidential: (1) no prior public disclosure; (2) a
reasonable expectation of confidence; and (3) public benefit (Air Atonabee,
at 20).
[45]
Before analyzing these criteria, it is
instructive to note how the Supreme Court of Canada characterized the nature of
the confidentiality inquiry under section 20(1)(b):
Once the relevant legal principles are
established, whether or not a record is confidential is primarily a question of
fact. Care must be taken, therefore, not to over-generalize the holdings of
particular cases, by failing to give due regard to the evidence which was
before the court in those cases (Merck Frosst, at para 150).
[46]
With that in mind, I turn to three criteria of
confidentiality from Air Atonabee.
[47]
There is no prior disclosure of the disputed
information. This conclusion applies to both the Department’s regulatory conclusions
and Porter’s SMS information.
[48]
With respect to prior public disclosure, an
additional aspect of the record should be noted. [omitted].
[49]
Relying on this fact, the Department advanced a
novel argument. In the Department’s view, its prior inadvertent disclosure
that [omitted] satisfies the prior disclosure requirement. Such an
interpretation belies the principles underlying both the Act and Air
Atonabee and amounts to favouring form over substance.
[50]
Whether or not a document has been previously
disclosed to the public, in fact, is a criterion directed at the ultimate
question of whether or not the information contained in that document is
confidential, in substance. The inadvertent disclosure of an otherwise
confidential document does not, in substance, undermine the confidential nature
of the information it contains. For example, a leak in the government’s
servers publicly disclosing the Social Insurance Numbers of various Canadian
citizens surely speaks more to an error in government than the lack of confidentiality
over what is ostensibly sensitive and private information. It does not mean
that further disclosure and dissemination is therefore warranted and in the
public interest.
[51]
Rather, the “prior
disclosure” requirement is directed at information
otherwise publicly accessible which, by virtue of being conventionally
accessible, lacks confidentiality. For example, information purposefully (as
opposed to inadvertently) posted on government websites (such as Statistics
Canada) would qualify as having been previously disclosed in a manner that is
suggestive of that information lacking confidentiality.
[52]
Merck Frosst is
consistent with a purposive interpretation of what constitutes prior
disclosure. In that decision, Merck argued that certain information was still
confidential, even though it was previously disclosed to the public, because
Merck dealt with that information confidentially in its internal operations. A
majority of the Supreme Court of Canada rejected this argument because Merck’s
internal operations were irrelevant to the question of whether or not the
information was, in fact, previously disclosed to the public. Importantly
however, that prior disclosure was not the inadvertent disclosure of otherwise
confidential and unavailable information, as it was in this case. Rather, the
information in Merck Frosst was a compilation of published scientific
articles contained in Merck’s New Drug Submission.
[53]
Further, the argument of the Department creates
the perverse incentive of releasing “purportedly” confidential information for the purpose of
legitimizing its subsequent disclosure. While I doubt that such inappropriate
conduct would be pursued by the government, at a minimum, the government should
not be rewarded by allowing that careless disclosure to form the basis of its
justification for the disclosure of Porter’s otherwise confidential
information.
[54]
Finally, even if a prior inadvertent disclosure
were envisioned by the three prong test in Air Atonabee, the prior
disclosure relied upon by the Department cannot undermine the confidentiality
of the disputed information because the two do not completely overlap. The
prior disclosure related merely to [omitted]. Such a narrow prior disclosure
cannot undermine the confidentiality attaching to all of the disputed
information, the content of which extends well beyond these two facts.
[55]
In sum, the government’s prior inadvertent
disclosure of any document cannot undermine its confidentiality with respect to
the exemption under section 20(1)(b). Consequently, this first aspect
of confidentiality under Air Atonabee is satisfied by the disputed
information.
[56]
The second criterion – that the disputed
information originated and was communicated in a reasonable expectation of
confidence – is only met in part. More precisely, while Porter’s SMS
information was disclosed with a reasonable expectation of confidence, there
was no reasonable expectation of confidence in the Department’s regulatory
conclusions in light of that confidential information (the dichotomy discussed
earlier).
[57]
Under this heading, Porter and the Department
argued for opposite conclusions based on irreconcilable factual claims. Porter
argued that the disputed information contains exclusively SMS information that
it reasonably expected would be kept confidential because of the Department’s
express assurances to that effect. In contrast, the Department argued that the
disputed information contains “nothing but
Transport Canada’s opinions, comments, conclusions and recommendations arising
from its regulatory assessment process.” As I
explained earlier, these submissions obscure the dichotomy between regulatory
conclusions and SMS information. Each must be analyzed separately.
[58]
I agree with Porter that its unique SMS
information should be exempt from disclosure. It reported that information to
the Department with express assurances from the Department that it would remain
confidential. There are few circumstances in which a more reasonable
expectation of confidence could be found.
[59]
That said, Porter’s argument on this point
referred exclusively to its SMS information, which is only part of the disputed
information. The Department’s regulatory conclusions, with respect to which
there were no assurances of confidentiality, are consequently not exempt from
disclosure. Even Porter’s own authorities support this conclusion. Porter
cited two cases in which an airline’s information was exempt from disclosure
under the Act, but that information was the airline’s unique safety
protocols, not regulatory conclusions related to those protocols (see: Wells
v Canada (Minister of Transport), [1995] FCJ No 1447 (FCTD) at para 9; Wells
v Canada (Minister of Transport), [1996] FCJ No 598 (FCTD) at paras 5 and
12). These cases only provide further evidence of the Court’s consistent
treatment of regulatory conclusions as subject to disclosure under the Act.
[60]
The final Air Atonabee criterion
regarding confidentiality is whether maintaining the information as confidential
serves the public interest. More precisely, this “public
benefit” criterion was described in Air
Atonabee as follows:
that the information be communicated, whether
required by law or supplied gratuitously, in a relationship between government
and the party supplying it that is either a fiduciary relationship or one that
is not contrary to the public interest, and which relationship will be fostered
for public benefit by confidential communication (at para 45).
[61]
In essence, the public benefit criterion is
directed at the characterization of the relationship between the government
(the Department) and the party supplying the information (Porter).
[62]
The passage above from Air Atonabee
outlines two types of relationships deserving of confidential status under
section 20(1)(b): (1) fiduciary relationships; and (2) relationships
that simultaneously meet two criteria (a) being not contrary to the public
interest, and (b) being fostered for public benefit by confidential
communication (see Canadian Imperial Bank of Commerce v Canada (Canadian
Human Rights Commission), 2007 FCA 272 at para 68). The relationship
between Porter and the Department is not fiduciary. Consequently, maintaining
confidentiality over the disputed information will only serve the public interest
if Porter’s relationship with the Department is not contrary to the public
interest and the public interest will be fostered by treating the relationship
as confidential. As the jurisprudence consistently demonstrates, it is not for
the public benefit to maintain confidentiality over regulatory conclusions.
[63]
The public benefit/public interest criteria were
considered in the context of airlines and their regulators in Air Atonabee.
In that decision, Justice MacKay concluded, properly in my view, that confidential
information originating from the airline should be exempt from disclosure
because it satisfies both criteria:
[…] it is consistent with the public interest
and the relationship would be fostered for the benefit of the public, in my
view, by treating as confidential those communications which originate with the
applicant where the applicant has considered them confidential. In this case
the third party would be encouraged to be open and frank with inspectors if its
understanding about the restricted purposes and circulation of its
communications is recognized and respected (at para 49).
[64]
Consequently, Porter’s unique SMS information,
which falls within “communications which originate
with the applicant where the applicant has considered them confidential,” satisfies the public benefit criterion.
[65]
However, Justice MacKay also recognized that
regulatory conclusions are not subject to the same restrictions because their
sustained confidentiality is contrary to the public benefit except in
exceptional circumstances:
Where the records are from department sources,
not otherwise exempt from disclosure under section 20(1), the general purpose
of the Act – which identifies as a public interest given priority by Parliament
the provision of access to government controlled records – should be given
effect unless the relationship between the third party and government is
exceptional and warrants treating the records as confidential (at para 49).
[66]
The Department’s regulatory conclusions are
records “from departmental sources,” and are therefore not precluded from disclosure under
section 20(1)(b). Porter’s relationship with the Department is hardly
exceptional; the relationship between a private corporation and its regulator
is ubiquitous.
[67]
For its part, Porter advanced two arguments as
to why the disputed information should be exempt from disclosure. While
Porter’s arguments focussed only on its unique SMS information, in light of the
dichotomy of information that I identified earlier, I will apply its analysis
to both the SMS information and the Department’s regulatory conclusions.
[68]
Regarding Porter’s unique SMS information, I
have already concluded that this information should not be disclosed. I agree
with Porter’s submission that the disclosure of its unique SMS information
would provide competitors with “unfair insight
into Porter’s commercial and technical processes and procedures” contrary to public benefit.
[69]
Regarding the Department’s regulatory
conclusions, to the extent that Porter’s argument may be applied to such
conclusions, I disagree that they should be exempt from disclosure. Porter
argues that a “[f]ailure by the Department to
safeguard sensitive commercial information” will
undermine the “full and frank disclosure” of relevant information by Porter and other airlines.
However, extrapolating this logic to regulatory conclusions undermines the
express purposes of the Act.
[70]
The exemptions from disclosure under the Act
are the exceptions to the general rule that the public has a right to access
government information. Section 4(1) of the Act provides for the
general rule of disclosure upon request, and section 2(1) of the Act is
explicit about exemptions being exceptions that are “limited
and specific”:
|
The purpose of
this Act is to extend the present laws of Canada to provide a right of access
to information in records under the control of a government institution in
accordance with the principles that government information should be
available to the public, that necessary exceptions to the right of access
should be limited and specific and that decisions on the disclosure of
government information should be reviewed independently of government.
|
La présente loi
a pour objet d’élargir l’accès aux documents de l’administration fédérale en
consacrant le principe du droit du public à leur communication, les
exceptions indispensables à ce droit étant précises et limitées et les
décisions quant à la communication étant susceptibles de recours indépendants
du pouvoir exécutif.
|
[71]
The general nature of the rule favouring access
to information, and the corresponding limited nature of the exemptions, defeat
Porter’s argument that regulatory conclusions about its safety record should
not be disclosed for fear that it will undermine a culture of open reporting.
Put briefly, Porter’s argument applies to every possible instance of government
reporting and is therefore as expansive and general as possible (as opposed to “limited and specific”).
While such an argument related to promoting open reporting was accepted in Air
Atonabee, the court in that case limited the exemption to “communications which originate with the applicant” (at para 49) just as I have concluded here with
Porter’s SMS information.
[72]
Porter’s legal obligation to disclose
information to regulatory bodies is not unique. Similar legal obligations are
held by many corporations in a regulatory context. Consequently, Porter’s
argument applies generally, and cannot be seen as a “limited
and specific” exception to disclosure. A fear
that disclosure of regulatory findings would hinder communication would apply
to other federally regulated industry, well-beyond airlines. I cannot accept
that this Court should preclude the disclosure of regulatory findings on the
basis that it will encourage regulated entities to not disclose information
that they are legally required to disclose.
[73]
Under section 20(1)(b) of the Act,
Porter’s SMS information should be exempt from disclosure, whereas the
Department’s regulatory conclusions, should not be exempt from disclosure.
[74]
In sum, Porter’s SMS information should be
exempt from disclosure because it satisfies all of the criteria in section
20(1)(b): it is confidential technical information that was supplied to
the Department by Porter who treats it in a consistently confidential manner.
Further, in regard to its confidentiality, the SMS information was not
previously publicly disclosed, Porter had a reasonable expectation of
confidence over it, and maintaining its confidentiality fosters a relationship
between Porter and the Department that supports the public benefit by
encouraging open reporting.
[75]
In contrast, the Department’s regulatory
conclusions should not be exempt from disclosure because they do not satisfy
all of the criteria in section 20(1)(b). This is principally because
those conclusions were not provided to the Department by a third party.
Rather, the Department, with reference to Porter’s SMS information came to its
own conclusions about how that SMS information compared to various regulatory
requirements. Failing this requirement, the regulatory conclusions cannot be
exempt from disclosure under section 20(1)(b).
[76]
In light of the above findings, the disputed
information, once it is cleansed of confidential SMS information (through redaction),
is not precluded from disclosure under section 20(1)(b) of the Act.
[77]
Section 20(1)(c) of the Act
exempts the following information from disclosure:
|
information the
disclosure of which could reasonably be expected to result in material
financial loss or gain to, or could reasonably be expected to prejudice the
competitive position of, a third party.
|
des
renseignements dont la divulgation risquerait vraisemblablement de causer des
pertes ou profits financiers appréciables à un tiers ou de nuire à sa
compétitivité
|
[78]
Sections 20(1)(c) and 20(1)(d) are
harms-based exemptions that focus on potential harms flowing from the
disclosure of information, unlike section 20(1)(b), which centred on the
characterization of the information itself.
[79]
Flowing from the language of the provision,
there are two principal considerations under section 20(1)(c), both of
which were analyzed in Merck Frosst: (1) the degree of likelihood of
harm required, and (2) the type of harm. Both of these considerations support
disclosure of the Department’s regulatory conclusions.
[80]
The standard of proof associated with section
20(1)(c) is somewhat unique. Consequently, I will describe with the greatest
possible precision how the standard of proof has been characterized by the
Supreme Court of Canada.
[81]
I begin with the label assigned to the standard
of proof. In Merck Frosst, the Supreme Court of Canada affirmed a “long accepted formulation”
of the Federal Court and the Federal Court of Appeal, that the wording “reasonably be expected to”
in section 20(1)(c) translates into a legal standard of proof of a “reasonable expectation of probable harm” (at para 196).
[82]
Next, the Supreme Court expanded on this
standard of proof through implicit characterization, meaning, that the Supreme
Court described a reasonable expectation of probable harm by situating it
between the two standards of proof from which it differs:
A third party claiming an exemption under s.
20(1)(c) of the Act must show that the risk of harm is considerably
above a mere possibility, although not having to establish on the balance of
probabilities that the harm will in fact occur (at para 199).
[83]
In essence, the Supreme Court’s statement above
draws the boundaries within which a “reasonable
expectation of probable harm” is situated: above
the lower bound of “a mere possibility” and below the upper bound of “on
a balance of probabilities.” The Supreme Court of
Canada provided further precision by adding that these boundaries outline “a standard considerably higher than mere possibility,
but somewhat lower than ‘more likely than not’”
(at para 203). Further, the Supreme Court elaborated on the substance of these
upper and lower bounds. It described “a mere
possibility of harm” as based in a fear of harm
that is “fanciful, imaginary or contrived” rather than based on reason, and it described a
balance of probabilities as “prov[ing] that harm
is more likely than not” (at para 204).
[84]
Finally, the Supreme Court expanded on the
standard of proof through explicit characterization, meaning, that it described
what a reasonable expectation of probable harm itself entails, rather than what
it does not entail. The Supreme Court described a reasonable expectation of
probable harm itself as “an expectation for which
real and substantial grounds exist when looked at objectively” (at para 204).
[85]
In Merck Frosst, the Supreme Court of
Canada opined that the list of harms in section 20(1)(c) is “disjunctive,” meaning,
that it is sufficient for Porter to show either that the disclosure of the
disputed information will result in “material
financial loss or gain” to Porter or “prejudice [Porter’s] competitive position” (at para 212). Consequently, the Supreme Court was
explicit that “it is not necessary for the third
party to show that the ‘prejudice’ to his or her competitive position also
results in ‘harm’” (at para 212).
[86]
More specific to this case, the Supreme Court of
Canada also commented on the harm of “public
misunderstanding” caused by disclosure. On this
point, the Supreme Court opined:
The courts have often -- and rightly -- been
sceptical about claims that the public misunderstanding of disclosed
information will inflict harm on the third party […] If taken too far, refusing
to disclose for fear of public misunderstanding would undermine the fundamental
purpose of access to information legislation. The point is to give the public
access to information so that they can evaluate it for themselves, not to
protect them from having it. In my view, it would be quite an unusual case in
which this sort of claim for exemption could succeed (at para 224).
[87]
The expectation of harm is assessed through
objective and subjective lenses. Here, it is difficult to accept that,
objectively viewed, there is a reasonable expectation of harm. [omitted]. I
cannot accept that this information, once released, would affect the travel
choices of reasonable passengers in the spring of 2014. In particular, I
cannot accept that [omitted] amounts to “real and
substantial grounds” supporting the expectation of
harm to Porter. Mr. Deluce himself notes that [omitted]. Surely then, any
alleged harm to Porter would be the consequence of public misunderstanding, a
harm that has been expressly cautioned against by the Supreme Court with
respect to supporting an exemption under the Act.
[88]
While Mr. Deluce was not cross-examined, and the
Department filed no evidence for its part, the evidence of Porter still fails
to meet the legal threshold of a reasonable expectation of probable harm. I
accept much of Mr. Deluce’s evidence, particularly [omitted]. However, [omitted]
and objectively viewed, no nexus or proximity between the release of these
regulatory conclusions and a probability of financial harm, either in terms of
financial loss to Porter or injury to its competitive position has been
demonstrated.
[89]
Section 20(1)(d) of the Act
exempts the following information from disclosure:
|
information the
disclosure of which could reasonably be expected to interfere with
contractual or other negotiations of a third party.
|
des
renseignements dont la divulgation risquerait vraisemblablement d’entraver
des négociations menées par un tiers en vue de contrats ou à d’autres fins.
|
[90]
As no factual basis has been established which
would support the application of this exemption it cannot apply to the disputed
information. Mr. Deluce’s affidavit provided no specific or compelling
examples of actual or probable negotiations that would or could suffer as a
consequence of releasing the disputed information. Consequently, this ground
will not be considered further.
[91]
There was a relatively brief dispute between the
parties with respect to exemptions under section 19 of the Act, which
exempts the following information from disclosure:
|
…any record
requested under this Act that contains personal information as defined in
section 3 of the Privacy Act.
|
…de documents
contenant les renseignements personnels visés à l’article 3 de la Loi sur
la protection des renseignements personnels.
|
[92]
Under section 3 of the Privacy Act, RSC
1985, c P-1, “personal information” is defined as “information
about an identifiable individual that is recorded in any form.”
[93]
The Department acknowledges that the disputed
information may contain Mr. Deluce’s personal information; however, the
Department also argues that Porter’s privacy concerns regarding that personal
information are addressed by redacting that personal information from the
disputed information while disclosing the remainder. I agree. No document was
identified which, if properly redacted, gave rise to the disclosure of personal
information.
[94]
As a consequence, subject to the redaction of
Mr. Deluce’s personal information, the disputed information is not precluded
from disclosure under section 19 of the Act.
[95]
The Act was not meant to prevent from
disclosure regulatory conclusions made by various governmental agencies.
Rather, the Act was meant to facilitate access to such information, and
consequently, to promote transparent regulatory processes and an informed
public.
[96]
The Department was correct in its decision to release
the disputed information, subject to redactions directed at Porter’s unique SMS
information and Mr. Deluce’s personal information. In particular, the
Department’s regulatory conclusions regarding Porter’s SMS should be released.
[97]
If there are further disputes between the
parties with respect to the difference between regulatory conclusions and
confidential SMS information, they may return to this Court for further
guidance.
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